Congress gave the National Park Service permission to hold an elk hunt in Grand Teton National Park, but a lawsuit claims it's not being properly managed/NPS

Students of National Park Service history are well-familiar with the National Park Service Organic Act, particularly the section that reads that the agency's primary mandate is, "....to conserve the scenery and the natural and historic objects and the wild life therein..."

But there should be a caveat inserted, one that at times permits the agency to reorder its mandates to place recreation above conservation.

A court ruling earlier this year seemed to flip the agency's priorities at Big Cypress National Preserve in Florida. There, in a sub-tropical landscape of freshwater sloughs and hardwood hammocks, of pinelands and prairies, the endangered Florida panther occupies a swath of valuable habitat. It's habitat, though, that also is valued by visitors who use over-sized off-road vehicles to head into the backcountry. When the park staff decided to open areas within the Addition Lands, an expanse of roughly 150,000 acres that came to Big Cypress in 1996 and which had been off-limits to ORVs while the staff developed a management plan, to more than 100 miles of ORV routes, conservationists sued, arguing, in part, that the management plan was in conflict with the Organic Act's preservation mandate.

In the end, U.S. District Judge John Steele held that the Park Service was within its rights to favor ORV use in the Addition Lands because the enabling legislation for Big Cypress "included the allowance of hunting and at least some recreational ORV use."

At the University of Utah, Professor Robert Keiter, the Wallace Stegner Professor of Law and director of the Wallace Stegner Center of Land, Resources, and the Environment, agreed with the judge's conclusion and said it was not in conflict with the Organic Act's preservation mandate.

"In short, the ruling does not alter the NPS'™s longstanding interpretation of its basic Organic Act mandate that conservation takes priority over recreation when the two conflict. Nor does it call into question the several earlier judicial decisions that have arrived at this same interpretation of the Organic Act," pointed out Professor Keiter.

"What the judge is saying is that the Establishment legislation for the Big Cypress Preserve Addition takes precedence over the basic Organic Act mandate when there is a conflict between the two, a legal principle that is explicitly stated in the Organic Act at 16 USC 1c ('œEach area within the national park system shall be administered in accordance with the provisions of any statute made specifically applicable to the area.')," the professor continued. "Put differently, Congress'™s final (or latest) word regarding a national park unit takes precedence over the earlier, more general provisions in the Organic Act."

Whether that same judicial interpretation is reached in a lawsuit filed recently against the Park Service at Grand Teton National Park in Wyoming will be something to watch for. That lawsuit, filed by two Teton County (Wyoming), photographers, Timothy Mayo and Kent Nelson, demands that the park bring an end to its annual elk hunt, at least until it abides by the National Environmental Policy Act, the National Park Service Organic Act, the Endangered Species Act, and the Grand Teton Act.

Much as the enabling legislation for Big Cypress provided for some ORV use, the Grand Teton Act specifically provides for an annual elk hunt:

SEC 6. (a) The Wyoming Game and Fish Commission and the National Park Service shall devise, from technical information and other pertinent data assembled or produced by necessary field studies or investigations conducted jointly by the technical and administrative personnel of the agencies involved, and recommend to the Secretary of the Interior and the Governor of Wyoming for their joint approval, a program to insure the permanent conservation of the elk within the Grand Teton National Park established by this Act. Such program shall include the controlled reduction of elk in such park, by hunters licensed by the State of Wyoming and deputized as rangers by the Secretary of the Interior, when it is found necessary for the purpose of proper management and protection of the elk.

Eric Glitzenstein, the attorney retained by Messieurs Mayo and Nelson and who also is working on the Big Cypress matter, sees key differences between the two cases. While Grand Teton's enabling legislation does allow for an elk hunt as a form of population control, he said, the park staff has not engaged in any National Environmental Policy Act "review when it approves the annual hunts, and it has never subjected certain crucial assumptions underlying the hunt '“ which are supposed to justify the hunt '“ to any form of meaningful public or scientific scrutiny.

"Another important thing to keep in mind about the Grant Teton elk hunt: contrary to the approach that NPS has adopted, Congress did not dictate that there must be a recreational hunt of any kind in Grant Teton," Mr. Glitrzenstein went on. "Rather, the killing of elk '“ which the Park Service has said is discretionary, not mandatory '“ is, under the statute establishing Grant Teton, supposed to be all about conserving the elk; legally, it has nothing whatsoever to do with hunters'™ desire to hunt recreationally within a national park."

Beyond that, the lawyer said, Grand Teton staff has not engaged the public on the merits/need of the annual hunts, and has not used any "scientifically based process for determining whether a hunt, or of what magnitude, is truly necessary for elk conservation."

"Indeed, the overall population target number has never even been subjected by NPS to any kind of public review and comment," said Mr. Glitzenstein. "This, in my view, is at least as egregious a process breakdown as anything we saw in Big Cypress, including in the very early days when we sued and got NPS to agree, through a settlement, to put out a biologically-based, publicly accountable ORV plan for the first time."